Excerpt:civil procedure code (act v of 1908), order ix, rule 13-defendant-default in appearance ex parte decree-application to have the decree set aside.;where an ex parte decree has been passed against a defendant who hag failed to appear at the hearing, he is not entitled to have the decree set aside as a matter of coarse even if he applies of the sane day for the purpose. it is a matter for the discretion of the judge.;chhotalal v. ambalal (1925) 27 bom. l.r. 685 and sorabji v. ramjilal (1924) 26 bom. l.r. 321, commented on. - - but in cases like this one the dismissal of the suit is a penalty, out of all proportion to the offence. it also provides that in such an event he may afterwards apply to the court and get the ex parte decree set aside, on good cause being shown. on the other hand,..........was not there and an ex parte decree was passed. thereupon an application was made to the learned judge to restore the case to the list for hearing and to set aside the ex parte decree on certain grounds set forth in the affidavit in support of that application. the learned judge in the exercise of his discretion refused the application.2. in revision, it is said that the learned judge thereby violated an established rule of law and practice by which any litigant is entitled to have an ex parte decree set aside, provided he comes to the court at some later time on the date of hearing and makes an application. for that purpose two authorities were cited to us. one is chhotalal v. ambalal : air1925bom423 where a party was late because of an accident to the train. an application.....

Judgment:

Amberson Marten, Kt., C.J.

1. This is an application in revision and not an appeal, The suit originally came before Mr. Chitre. The defendant was not there and an ex parte decree was passed. Thereupon an application was made to the learned Judge to restore the case to the list for hearing and to set aside the ex parte decree on certain grounds set forth in the affidavit in support of that application. The learned Judge in the exercise of his discretion refused the application.

2. In revision, it is said that the learned Judge thereby violated an established rule of law and practice by which any litigant is entitled to have an ex parte decree set aside, provided he comes to the Court at some later time on the date of hearing and makes an application. For that purpose two authorities were cited to us. One is Chhotalal v. Ambalal : AIR1925Bom423 where a party was late because of an accident to the train. An application was made to have the suit restored on board but the Judge exercised his discretion and rejected it. In revision Sir Norman Macleod observed (p. 687) :-

We have more than once laid it down as a rule of practice to be observed in the subordinate Courts that when a party arrives late before the Judge, and finds that his suit or application has been dismissed before his arrival, he is entitled to have his suit or application restored on payment of such costs as may have been incurred by reason of his default by the opponents.

The mere fact that a party or his pleader has arrived in Court after the proper hour when the suit has been disposed of ex parte, is no reason whatever why the suit should not be restored to the board and the case heard on its merits, the Court imposing such conditions on the defaulting party as might meet the justice of the case. We must not be taken as in any way encouraging unpunctuality. But in cases like this one the dismissal of the suit is a penalty, out of all proportion to the offence.

Then earlier on the same judgment says (p. S23):-

We have more than once laid down that even supposing a party is absent when the suit is called on for hearing, if he appears in Court before the Court has risen for the day, then the Court should listen to his application for having his suit restored.

3. Now, if these two cases are supposed to lay down the law of practice contended for the applicant, then with all deference to those decisions I am unable to agree with them For instance, if such a rigid rule is laid down, it might mean his, that a defend-Moos ant could successfully prevent his suit ever being heard. All that he would have to do would be to appear late on successive dates, and allow the suit to be heard ex party and then to apply at the end of each day to have the suit restored for hearing. That obviously is a course which no Court would allow. Consequently, the alleged rule or practice involves reading something into the Code which not only is not there, but which is contrary to what the Code actually says.

4. What the Code does say is that if a defendant does not appear when the suit is called on for hearing, a decree may be passed against him. It also provides that in such an event he may afterwards apply to the Court and get the ex parte decree set aside, on good cause being shown. But that is a matter for the discretion of this Judge, and if we were to lay down the rule we are asked to lay down, it would mean practically that the Code would have to be substantially altered. Moreover, it would encourage unpunctuality, which is the very thing that Sir Norman stated in the second case that he did not intend to encourage. On the other hand, as far as this Court is concerned, in cases of real hardship like the case of Chhotalal v. Ambalal, where the Court had to deal with a man who was late because of an accident to his train, that would naturally be a matter to be taken into consideration in his favour.

5. Then counsel stated that the past practice in the Small Causes Court was always to allow such applications. But we have here the benefit of a decision of a learned judge, who has a long experience of the Small Causes Court, and who is perfectly familiar with any alleged practice of that Court.

6. Under these circumstances, we are not prepared to say in revision that the learned Judge exercised his discretion without regard to law or in any improper way, which would give us the right to revise it. Whether we would necessarily arrive at the same conclusion as he did if we were sitting as Judges of first instance is another matter altogether. Under the circumstances the rule will be discharged with costs.